Pendakwaraya v Rahmat Bin Ghazali (B-09-147-04/2019 & A-09-108-03/2019 (Concurring Judgment))

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1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL: NO.B-09-147-04/2019 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND RAHMAT BIN GHAZALI … RESPONDENT [In The Matter Of High Court Of Malaya At Shah Alam Criminal Appeal No: BA-41H-55-02/2018 Between Public Prosecutor And Rahmat bin Ghazali] [In The Matter Of Magistrate Court of Shah Alam In The State of Selangor Criminal Case No: 83 JS-20-12/2015 Between Public Prosecutor And Rahmat bin Ghazali] 2 HEARD TOGETHER WITH IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL: NO. A-09-108-03/2019 PUBLIC PROSECUTOR … APPELLANT AND MOHD POGI BIN ABD LATEB … RESPONDENT [In The Matter Of High Court Of Malaya At Ipoh Criminal Appeal No: AA-4LB-16-07/2018 Between Public Prosecutor And Mohd Pogi bin Abd Lateb] [In The Matter Of Magistrate Court of Tanjong Malim In The State of Perak Criminal Case No: 83-83-12/2016 Between Public Prosecutor And Mohd Pogi bin Abd Lateb] 3 CORAM: KAMALUDIN MD SAID, JCA RAVINTHRAN PARAMAGURU, JCA NORDIN HASSAN, JCA JUDGMENT Nordin Hassan JCA: [1] I had the opportunity of reading through the grounds of judgment of my learned brother Ravinthran Paramaguru JCA in draft. I agree with his view that that there is no requirement to state questions of law in the notice of appeal filed by the Public Prosecutor. However, contrary to Justice Ravinthran’s opinion that the Public Prosecutor’s appeal must confined to only questions of law, I am of the view that it does not. [2] The backgrounds and the facts of the two appeals had been well spelled out in Justice Ravinthran’s judgment and need no repetition here. [3] The core issue here, is whether an appeal by the Public Prosecutor against the decision of the High Court in respect of criminal matter decided by Magistrate’s court shall only confined to questions of law. In this regard, reference to the relevant provisions is pertinent in analyzing and determination of the issue at hand. Section 50(2) and 50(3) of the Court of Judicature Act 1964 which merit reproduction are as follows: 4

Subparagraph

(ii) Section 50(3) Notice of any appeal by the Public Prosecutor, the Solicitor General or any officer authorized by the Public Prosecutor; and notwithstanding subsection

Subsection

(2) no leave of the Court of Appeal is required. (emphasis added) [4] It is clear that section 50(3) above stated, provides that, notwithstanding subsection (2), no leave is required for the Public Prosecutor to appeal against the decision of the High Court in relation to any criminal matter decided by the Magistrate Court. [5] The word ‘notwithstanding’ in subsection 50(3) need no further interpretation as its literal meaning is clear which means inspite of. The Federal Court in the case of Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret David Wilson [2010] 5 CLJ 899 had discussed the meaning of the word ‘notwithstanding’ as follows: 5 “[19] Before reverting to consider s. 35 PKKM Act 1979 it is provided in s. LPA Act 1976 that the exclusive right of an advocate and solicitor to appear in all Court of Justice in Malaysia is subject to the Act 1979 itself as well as any other written law. This could be read with s.35 Act 1979 which indicated earlier begins with the words “Notwithstanding…” The term “notwithstanding” means generally “not to stand against it”, or “in the way” or overriding. [6] Clearly, inspite of anything contained in subsection 50(2), the Public Prosecutor is not required to obtaine leave from the Court of Appeal in order to appeal against the decision of the High Court in respect of a decision on criminal matter by the Magistrate Court. [7] Further, subsection 50(3) must be read together with subsection 50(2) and one of the key words in subsection 50(2), is the words “such appeal” which are the following: An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrate’s Court but such appeal shall be confined to only question of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of appeal or revision. [8] In my view, the words “such appeal” in section 50(2) refers to said appeal with the leave of the Court of Appeal which does not applies to the Public Prosecutor as the Public Prosecutor is exempted from obtaining leave pursuant to subsection 50(3). Hence, the appeal that 6 confined only to the questions of law envisaged by subsection 50(2), is the appeal that requires leave which only applicable to an accused person who intends to appeal against the decision of the High Court in respect of criminal matter decided by the Magistrate Court. [9] In regard to this issue, there are two conflicting views by this court in the case of Public Prosecutor v Pasupathy s/o Kanagasaby [2001] 2 MLJ 143 and Public Prosecutor v Mahathir bin Muhammad [2013] 1 MLJ 50. [10] It was held in Mahathir Muhammad’s case (supra), that the notice of appeal filed by the Public Prosecutor must state the questions of law and the appeal by the Public Prosecutor must confined to only questions of law. The court was of the view that section 50(3) only exempts the Public Prosecutor from obtaining leave to appeal and nothing more. Further, the court opined that if the Public Prosecutor can appeal to the Court of Appeal on question of fact or question of mixed law and fact but the accused can only appeal on questions of law, it would be discriminatory in nature against the accused and not in harmony with the spirit of Article 8 of the Federal Constitution. [11] Conversely, in Pasupathy’s case, it was held that pursuant to subsection 50(3) and 50(2), the Public Prosecutor only need to file a notice of appeal and the appeal by the Public Prosecutor does not confined to only questions of law. Lamin PCA, delivering the judgment of the court, had this to say: 7 “…Subsection (2), in my view was drafted especially for the benefit of an aggrieved accused person. As for the public prosecutor, he may avail himself of the provision of sub-s (2) because the phrase ‘notwithstanding sub-s (2) found in sub-s (3). When an accused person desires to appeal, the full force of sub-s (2) comes into play. He has to apply for ‘leave’ and his appeal must be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision. ……. Now, sub-s (2) states ‘An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, but such appeal shall be confined to only questions of law.’ (Emphasis added). The words ‘such appeal’ must refer to the appeal ‘with the leave’ or requiring leave. So sub-s (2) is aimed to make provision for an appeal requiring leave. When leave is required to be applied for, it connotes that the applicant has to satisfy the court as to a certain condition; meaning that there must be a subject matter for arguments. In sub-s (2), the applicant must show whether or not there exist questions of law. So, the existence or otherwise of the questions of law is the subject matter for the submission before the court. The applicant as we have said earlier, is no other than the aggrieved accused person. On the other hand, the public prosecutor needs only to file a notice of appeal and for that purpose, it is expressly provided that no leave is required. That means there is nothing to submit before the court. With respect, we are of the view therefore that the public prosecutor is not required to show to the court that there are questions of law which arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision “ (emphasis added) 8 [13] I am in agreement with the view in Pasupathy’s case and more so the Public Prosecutor is the guardian and the last bastion of public interest. Public interest need to be protected at all costs. In ensuring no injustice occurs in any case, even in the ‘less serious’ case, the power of the Public Prosecutor must not be curbed. In the present situation, the rights to appeal by the Public Prosecutor must not only on questions of law but also on question of fact or mixed law and fact in order to protect public interest. [14] Take an example of an offence of outraging modesty under section 354 of the Penal Code, as in the case before us in criminal appeal no.B-09-147-04/2019, as the High Court wrongly disturbed the finding of facts by the Magistrate Court and overturned the decision of the Magistrate against the established evidence, the Public Prosecutor must has the rights to appeal in order to ensure justice to the victim. The Public Prosecutor must not be seen helpless although injustice was detected in a case. This is certainly not the intention of Parliament in enacting section 50 of the Court of Judicature Act 1964. In Mahathir Muhammad’s case, it was said that there is very minimal risk of real injustice if appeal to Court of Appeal should only confined to questions of law. However, a minimal risk is still a risk of real injustice which should not be allowed in our justice system. [15] On the issue of guardian of public interest, this court in Peguam Negara Malaysia v Nurul Izzah Anwar [2017] 5 CLJ 595 had explained and held as follows: 9

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(2) The appellant had locus standi and a special right to appeal in the public interest. The appellant was undeniably a party at the leave application. His presence was required by law without being made a party to the proceedings. The relevant provision is found in O. 53 r. 3(3) of the Rules of Court 2012 which makes it mandatory for the applicant to give notice of the application to the Attorney General’s Chambers. A failure to comply with the mandatory requirement to serve the cause papers on the Attorney General would result in the application being dismissed. It also makes the Attorney General the party representing the public interest at the point when the leave application is heard. Hence, when he appears before the court at that stage, the court has to recognise his presence and has no jurisdiction not to hear him. The putative party, the EC, was not a party at that particular point. The appellant’s position as guardian of public interest at this stage would necessarily include the right to appeal against an order granting leave. (emphasis added) [16] Although the above case is an election petition’s case, the principle therein is relevant to issue in the present case. [17] It is my view that in interpreting section 50 of the Court of Judicature Act 1964, the purposive approach must be taken to ensure public interest is protected. This is also in consonance with section 17A of the Interpretation Acts 1948 and 1967 which states: “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether the purpose or object is 10 expressly stated in the Act or not) shall be preferred to a construction that would not promote the purpose or object.” [18] In a recent Federal Court case of Benjamin William Hawkes v Public Prosecutor [2020] 5 MLJ 417, the court adopted the purposive approach in interpreting section 51A of the CPC and held that the word “shall” therein is not mandatory but only directory in nature. Zabariah Yusof FCJ delivering the judgment of the court said this: “[48] The purposive rule of interpretation must be adopted in interpreting s 51A of the CPC, pursuant to s 17A of the Interpretation Acts 1948 and 1967… [49] It is clearly untenable in this case to allude to the word ‘shall’ as mandatory, thus stultifying the justice of the case, when the document was not delivered to the accused persons before the commencement of the trial.” (emphasis added) [19] Likewise in the instant case, for the interest of justice which the Public Prosecutor is tasked to protect, the interpretation of section 50 of the Court of Judicature Act 1950 that allows the Public Prosecutor to appeal on questions of law or fact or mixed law and facts must be adopted. [20] Next, on the issue of equality before the law as enshrined under Article 8 of the Federal Constitution, our law accepted the doctrine of 11 classification on the basis that the classification is permissible if it is founded on an intelligible differentia and the differentia has a rational relation to the object of the impugned law. [21] The meaning of intelligible differentia and its application has been explained in the case of PP v. Harmenderpall Singh Jagara Singh [2007] 2 CLJ 577; [2007] 3 MLJ 433 as follows: “[62] Going by the Oxford English Dictionary, 'intelligible' means: capable of understanding (not by senses) that may be apprehended by intellect, and 'differentia' means: the attribute by which a species is distinguished from all other species of the same genus; a distinguishing mark or character. In this instance, the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may therefore be founded on a different basis, namely geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantive distinction bearing a reasonable and just relation to the thing in respect to which the classification is made for otherwise the classification made would be without any reasonable basis - Mukherjee J in Anwar Ali Sarkar' s case 1952 AIR 75 and quoted in Public Prosecutor v. Su Liang Yu [1976] 1 LNS 113; [1976] 2 MLJ 128 at p. 130.” (emphasis added) 12 [22] This doctrine of classification is further explained by Suffian LP in Datuk Hj Harun Hj Idris v PP [1976] 1 LNS 19 (FC) as follows: “7. In India discriminatory law is good law if it is based on 'reasonable' or 'permissible' classification, using the words used in the passage reproduced above from the judgment in Shri Ram Krishna Dalmia, provided that:

Subparagraph

(ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question. The Solicitor-General submits that if the Indian doctrine of classification is to be accepted by our courts, which he argues has not been done, it may be accepted subject to the modification that the courts should not take it upon itself to consider whether the classification is reasonable or not, a task which should be left to the legislature. In our opinion the doctrine of classification should be accepted by our courts, subject to what we said in paragraph 6 above. We adhere to what was said in Public Prosecutor v. Khong Teng Khen at page 170.” [23] Reverting to the present case, subsection 50(2) of the Court of Judicature Act 1964 applies to all accused who intend to file an appeal against the decision of the High Court in respect of criminal matter decided by the Magistrate Court. Hence, the classification is reasonable 13 and permissible and does not infringed Article 8 of the Federal Constitution. [24] On the same issue, Richard Malanjum FCJ in Ooi Kean Thong & Anor v PP [2006] 2 CLJ 701 had this to say: “As regards art. 8 judicial pronouncement on the scope of this article has been 'that equality before the law' requires that the cases of all potential defendants to criminal charges shall be given unbiased consideration by the prosecuting authority and that decision whether or not to prosecute in a particular case for a particular offence should not be indicated by some irrelevant consideration. Article 8(1) does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed'. (See: Nadaraiah v. PP [2000] 4 CLJ 634; Public Prosecutor v. Tengku Mahmood Iskandar [1973] 1 LNS 124; [1973] 1 MLJ 128). Hence the reliance on art. 8 by learned counsel in our view has no merit as there is no assertion that the applicants were singled out by DBKL in relation to the enforcement of the impugned by-law. There was also no allegation that irrelevant consideration was taken into account when DBKL decided to issue the summons to the applicants. Accordingly it is our judgment that the impugned by-law does not infringe any of the rights as enshrined in articles 5 or 8 of the Constitution.” 14 Conclusion [25] In conclusion, it is my view that besides the Public Prosecutor is not required to state questions of law in the notice of appeal for an appeal against the decision of the High Court in respect of criminal matter decided by the Magistrate Court, the appeal by the Public Prosecutor is also not confined to only questions of law. The Public Prosecutor can raised question of fact or mixed law and fact in their appeal. Dated this day, 23 November 2020. (DATO’ NORDIN BIN HASSAN) Judge Court of Appeal Malaysia Putrajaya Criminal Appeal No. B-09-147-04/2019 For the Appellant : Datuk Nazran bin Mohd Sham Deputy Public Prosecutor Attorney General Chambers For the Respondent : Afifuddin bin Ahmad Hafifi Siti Sarah Khalil Messrs. Salehuddin Saidin & Associates 15 For Criminal No. A-09-108-03/2019 For the Appellant : Datuk Nazran bin Mohd Sham Deputy Public Prosecutor Attorney General’s Chambers For The Respondent : Chris Kooi Wei Kit Ivy Chin Ai Wei Messrs. Kit & Associates 16